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F I S C A L I M P A C T R E P O R T

SPONSOR Payne

DATE TYPED 3/9/2005 HB

SHORT TITLE Curfew Enforcement Act

SB 645/aSPAC

ANALYST Dunbar

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates HB471

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children Youth and Families Department (CYFD)

Attorney General (AG)

NM Public Education Department (NMPED)

Administrative Office of the District Attorneys (AODA)

Administrative Office of the Courts (AOC)

NM Department of Corrections (NMDC)

SUMMARY

Synopsis of SPAC Amendment

The Senate Public Affairs Committee amendment to Senate Bill 645 provides for:

1.

A definition of a family education program,

2.

Procedures for a law enforcement officer to follow in questioning a child for a curfew

violation. The questions are limited to determination of identity, age, address, phone

number, the name address of the child’s parents and or guardians. The officer must

also determine if the child qualifies for one of the exceptions of the Act.

3.

Clarifying language when a child has permission to be outside the home and away

from the direct supervision of the child parents or guardians.

4.

A written warning to the child (in lieu of a warning) with a copy to the child’s par-

ents. The change also indicates that the warning shall be kept in on file by the mu-

nicipality or county until the child is 18 years of age.

5.

Citations to be issued to the parent or guardians for curfew violations (child will also

Senate Bill 645/aSPAC --Page 2

be cited),

6.

The appointment of a hearing officer by the municipality or county in lieu of the de-

partment when a citation is appealed.

7.

Data that is collected to include information on race, age, and sex of child and shall

not include any personal information such as photographs, tattoos, name or home ad-

dress by which a child or family could be identified.

8.

A delayed repealed of July 1, 2009.

The amendment tracks the language in the duplicate HB471 except for item 4 and item 6 noted

above.

Synopsis of Original Bill

Senate Bill 645 enacts the Curfew Enforcement Act within the Children’s Code to protect chil-

dren from dangerous circumstances. The Curfew Enforcement Act ("Act") provides that a mu-

nicipality or county may enact a curfew ordinance applicable to children under 16 years of age

during the time period between 12:00 a.m. and 5:00 a.m., if the municipality or county estab-

lishes a family education program that provides information about the curfew and the availability

of community services.

The bill contains four exceptions that an ordinance would have to include: (1) activities author-

ized by a school, religious organization or community organization; (2) verified employ-

ment/work-related errand; (3) parental permission; and (4) an emergency.

The Act provides for enforcement through issuance of a warning to the child for the first viola-

tion and issuance of a citation to the child for the second violation, which requires that the family

attend a family education program. Upon issuance of a second citation (third violation) the offi-

cer shall also call the CYFD juvenile justice call center and attempt to contact the parents or le-

gal guardian. Citations are subject to appeal to a hearing officer appointed by CYFD. If the

family does not attend the family education program or in the event of a third or subsequent vio-

lation, the child shall be referred to CYFD for assessment of whether the child is an abused or

neglected child. The Act provides that CYFD shall adopt rules for collection of data on curfew

ordinances and report annually to the legislature.

The Act contains definitions for an "abused child" and "neglected child."

Significant Issues

Because the law has so many exceptions, PED expresses concern that law enforcement will be

put in the difficult position of determining whether a child has a proper note from his parent,

church or school. Not clear is how law enforcement can or must verify if a child is excused from

being issued a citation for violating the act without taking the child into custody. Also, if a par-

ent or guardian at a violation hearing can simply say he/she gave his/her child permission to be

out after midnight, the express purpose of the act would be defeated.

PED also raises issues about a municipality’s exposure to civil liability if law enforcement issues

a citation to a minor who is later injured or killed because the child was not taken into custody.

The bill does not permit the taking of minors into custody, which has its own risks. See, ACLU

v. City of Albuquerque, 1999-NMSC-044, (Invalidating a curfew ordinance geared toward mi-

nors that permitted taking them into custody because the ordinance was preempted by the Delin-

Senate Bill 645/aSPAC --Page 3

quency Act of the Children’s Code.)

PED believes that the legislation will inevitably lead to confrontations between law enforcement

and minors that will implicate the search and seizure guarantees of the Fourth Amendment to the

U.S. Constitution and Article II, Section 10 of the New Mexico Constitution. Lawsuits will fol-

low when minors are taken into custody after being stopped by law enforcement ostensibly to

enforce the act. See, State v. Jason L., 2000-NMSC-018, (Suppressing the search and seizure of

a handgun from a 15-year-old walking with a friend at night about whom the Court concluded

there was not sufficient individualized suspicion regarding criminal behavior.); Eli L., 1997-

NMCA-109, (Officers must possess "at the time the Child was stopped . . . reasonable individu-

alized suspicion that the Child had committed or was about to commit a crime."); United States

v. Little, 60 F.3d 708, 712 (10th Cir. 1995) (Questions asked in an accusatory, persistent, and in-

trusive manner can make an otherwise voluntary encounter . . . coercive.); United States v. San-

chez, 89 F.3d 715, 718 (10th Cir. 1996) (Stating that the "threatening presence of several offi-

cers" and the "absence of other members of the public" are factors that could indicate that a rea-

sonable person would not feel free to ignore an encounter with the police). United States v. Little,

18 F.3d 1499, 1505, n. 6 (10th Cir. 1994) (“Characteristics such as whether the person being

questioned is a child or an adult . . . are objective and relevant" to the question of whether a rea-

sonable person would feel free to leave.); State v. Paul T., 1999-NMSC-037, (The full-blown

search by a police officer of the pockets of a 15year-old for violation of a curfew exceeded the

lawful and limited protective search under the Fourth Amendment.)

The New Mexico Supreme Court in ACLU v. City of Albuquerque, Id. at ¶19, noted that Section

32A-3B-3(A)(4) of the Children’s Code authorizes law enforcement to take children into protec-

tive custody who are endangered by their surroundings.

CYFD is concerned that Section 6 of the bill states that a first citation requires the child and the

child’s parents or legal guardians to attend a family education program. The bill does not define

such a program or specify who operates the programs. No such program may exist in many

communities.

The bill requires CYFD to provide a hearing officer for appeal of curfew citations. CYFD rec-

ommends that since this is a municipal or county program, the municipality or county should

provide the hearing officer. CYFD does not have staff available for this function and the bill

does not include an appropriation.

The bill requires that if a family fails to attend a family education program, after notice, or upon

a third or subsequent violation, the child shall be referred to CYFD for an assessment of whether

the child is an abused or neglected child. Curfew violations alone do not constitute abuse or ne-

glect. Municipalities will have to provide additional information of parental abuse or neglect to

trigger a formal investigation of the parents by child protective services.

FISCAL IMPLICATIONS

The bill would require municipalities who passed curfew ordinances to establish a Family Edu-

cation Program. Additionally, the CYFD would have to have sufficient hearing officers to hear

appeals of the issuance of citations to curfew violators. The cost for CYFD to establish these

programs or increase FTE cannot be determined.

Senate Bill 645/aSPAC --Page 4

ADMINISTRATIVE IMPLICATIONS

The bill requires the CYFD to adopt rules regarding ACLU v. City of Albuquerque during the

collection of curfew data and report this data annually to the Legislature.

Because SB0645 is unclear as to whether a court will be asked to resolve issues regarding excep-

tions to the ordinance that will be claimed, it is unknown if enactment of this bill would impact

various judicial resources. AOC, however, is expecting that challenges to the constitutionality of

curfew ordinances will occur, requiring the involvement of court personnel and requiring the al-

location of judicial resources.

The bill requires issuance of a second citation to be reported to the juvenile justice call center

and CYFD to adopt rules for collection of data from municipalities that enact a curfew ordi-

nance. This will have some administrative impact on CYFD; however, the data could prove

useful in developing future programs. The number of additional referrals for “assessments” of

whether a child is abused or neglected is unpredictable, and could place an additional resource

burden on CYFD.

This bill will increase the Public Defender Department workload, not directly through curfew

violations, but because local curfew ordinances give law enforcement officers a per se reason to

stop and approach a child, and these stops often result in criminal and/or delinquency charges.

See, e.g., State v. Paul T., 1999-NMSC-037, 128 N.M. 360, 993 P.2d 74 and State v. Javier M.,

2001-NMSC-030, 131 N.M. 1, 33 P.3d 1 (both criminal cases arising out of enforcement of for-

mer curfew ordinances).

TECHNICAL ISSUES

The AG suggest deleting the definitions "abused child" and "neglected child" in Section 2 of SB

645 and adding a new Section 2 that states that, unless otherwise provided, terms used in the

Curfew Enforcement Act shall be defined under the "Children's Code General Provisions Act" or

the "Abuse and Neglect Act."

SB645 uses the term department without a definition. Presumably, the term means CYFD as de-

fined in the "Children's Code General Provisions Act."

Even though the bill ostensibly does not authorize taking children into custody, the bill’s re-

quirement of having law enforcement issue a warning or citations for a “first violation” or “sec-

ond violation” respectively, make it appear that acts of delinquency are involved.

As discussed above, PED notes that section 5 contains so many general exceptions to a child’s

“violation” of the bill’s curfew requirement as to create confusion for law enforcement who

would be required to determine the veracity of these exceptions in their determination to warn or

cite a minor. As discussed above, taking or not taking a child into custody while verifying the

child’s authority to be outside of his home could expose the municipality to liability.

Given that an officer “shall issue a warning to the child,” It is not clear that how another officer

would know if a child has previously violated a curfew ordinance and should be issued a citation

for a second violation. (Line 22, Page 4) The officer may not have information regarding prior

offenses and without that information it may be difficult to meet the conditions.

Senate Bill 645/aSPAC --Page 5

OTHER SUBSTANTIVE ISSUES

According to the AG’s office, in 1999, the New Mexico Supreme Court struck down an Albu-

querque curfew ordinance that criminalized juvenile activity that is not unlawful when commit-

ted by adults. The Supreme Court held that the Delinquency Act of Children's Code preempts

the City from enacting and enforcing the curfew ordinance because the ordinance authorizes

criminal punishment of children for acts that would not be a crime under the law if committed by

adults. Moreover, the Supreme Court rejected the argument that the lateness of the hour was in-

herently dangerous to children and held that the City cannot take children into protective custody

without (1) a fact-specific showing allowing protective custody under Families in Need of Court

Ordered Services Act, § 32A-3B-3 and (2) compliance with the safeguards and placement re-

quirements of the Children's Code. See American Civil Liberties Union of New Mexico v. City

of Albuquerque, 1999-NMSC-044. SB0645 allows municipalities and counties to enact non-

criminal curfew laws that divert the children and families to the provisions under the Children's

Code.

BD/yr:sb